Metal Co. v. . R. R. , 145 N.C. 293 ( 1907 )

These two appeals have been so prepared for this Court that it has been found impossible to reach the true merits of the questions intended to be presented without considering them together and as if they had been consolidated into one. We doubt if it was necessary for the defendant to have formally taken an appeal, as the exceptions noted in its case might well have been considered in the plaintiff's appeal. It is stated by the judge, in the plaintiff's appeal, the case having been settled and signed by him, that all the evidence was sent up at the request of the appellant, whereas it appears by reference to the defendant's appeal that all the evidence, by some accidental omission, of course, was not, in fact, stated in the plaintiff's appeal, for there is much evidence to be found in the case as stated in the defendant's appeal which is not in the case as stated in the plaintiff's appeal. It was intended, no doubt, and we think the cases clearly show it (299) to be so, that all the evidence should have been set out in the plaintiff's appeal. We have for this reason, and for others of equal or greater weight, found it absolutely necessary, for the purpose of doing justice by intelligently considering this case, to unite the two cases, as it were, into one appeal, and in this way we have been enabled to reach what we consider to be the right conclusion upon the whole matter. In view of the confusion in the record, as above indicated, we think the costs of this Court, except the costs of printing the records and briefs, should be divided between the parties. The plaintiff is adjudged to pay one-half thereof, and the defendant the other half. The plaintiff will pay the costs of printing the record and briefs in its appeal, and the defendant the costs of printing the record and brief in its appeal. Where a new trial is granted, the awarding of costs is discretionary. Revisal, sec. 1279; Williams v. Hughes, 139 N.C. 18.

Regular practice and procedure would require us, under ordinary circumstances, to dismiss the defendant's appeal, as it was taken only to save its rights in case our opinion should have been adverse to it in the plaintiff's appeal, and, as we have decided the other way, a consideration of the defendant's appeal separately becomes unnecessary. We conclude, though, that an apparent departure from the strict practice in such cases is justified, under the peculiar circumstances, and the real intention of the parties will be effectuated by considering the two cases as we have done, and dividing the costs. If this course were not taken, and the plaintiff's position is the correct one, we would, perhaps, have to affirm in its appeal and award a new trial to the defendant's appeal, and thereby produce confusion and incongruity in the result. It would be vain and useless to issue a certiorari or any other process to perfect the case, when all the facts are before us in the two cases.

Sometimes it may be proper and legitimate practice for a party in whose favor a case has been decided to note his exceptions and preserve them by an appeal in case the ruling of the court is reversed (300) here, but the instances where this practice can be justified are exceedingly rare, and it is not to be encouraged. We do not decide that the defendant's appeal was improvidently taken in this case, though we are inclined to think the defendant's exceptions could have been presented in the plaintiff's appeal. Let the two cases be considered as one, and the costs be divided and paid as herein directed.

New trial, as ordered in plaintiff's appeal.

Cited: S. v. Ownby, 146 N.C. 678; Drewry v. Davis, 151 N.C. 299;Bank v. Drug Co., 152 N.C. 146.